Lord Hunt of Kings Heath: My Lords, we are very hopeful that the smoke-free legislation, alongside the advertising ban, will have a long-term impact in reducing the number of smokers. It is estimatedthat the advertising ban should reduce tobacco consumption in the long term by 2.5 per cent and that the smoke-free legislation will result in a 1.7 per cent fall in smoking prevalence. We hope that all those who provide premises in which smoking takes place will co-operate. We have no reason to think that the majority of responsible businesses and other service providers will not co-operate, but we are working hard with local government and enforcement officers to make sure that appropriate enforcement action can be taken where that is not the case.

Lord Naseby: My Lords, since the experience in Scotland was that you did not need to spend any money to enforce the measure because the trade was responsible, why have the Government allocated£30 million to local government in England toenforce it? Is the Minister aware that hookah pipes use hand-rolled tobacco? If there is to be research, members of ethnic communities, who increasingly smoke hookah pipes, will need to know in-depth the exact implications for their health.

Lord Hunt of Kings Heath: My Lords, we should acknowledge the success of the efforts in Scotland. None the less, resources should be made available to local authorities to ensure that they are able to take the appropriate enforcement action. I believe that the voluntary approach works best when it is known that there is a backstop of enforcement actions. Thatis the balanced approach we want to take—to encourage voluntarism but to have enforcement action as a backstop.

Lord Bassam of Brighton: My Lords, there have been seven occurrences at Gibraltar Airport in the past six months that have resulted in mandatory occurrence reports being raised. I undertake to write to my noble friend with full details of these occurrence reports. One of them refers to the occurrence on 29 November, which was the subjectof my noble friend's recent Questions for Written Answer.

Lord Chidgey: My Lords, the Minister will be aware that since the signing of the Cordoba agreement there has been an increased number of scheduled flights at Gibraltar, although I am not sure about fire engines. The Governor of Gibraltar has increased investment in both the approach roads and the terminal buildings. The problem seems to be airside—the operational side of what is still a Royal Air Force base. When can we expect to see the normal five-mile exclusion zone around the airfield to protect it? When can we expect to see the normal five-mile straight-in approach on landing? When can we expect to see upgrading of the radar and navigational aidsso that there is no further exclusive reliance on a visual-only approach to Gibraltar Airport?

Lord Bassam of Brighton: My Lords, the Government are considering their view with regard to this agreement. It will be discussed at the European Transport Council on 22 March. I hope that the noble Lord will accept that it would not be appropriate for me to pre-empt the discussion in the Council or to set out the Government's negotiating position in detailat this time. However, I can assure him that the Government will not sign up to a deal unless they consider it to be in the overall interests of the United Kingdom to do so.

The Earl of Mar and Kellie: My Lords, I understand that the agreement would lead to an increase in transatlantic air passengers from 50 million to76 million a year within five years. Is that acceptable in terms of global atmospheric pollution and airport pollution in the form of air noise and road congestion?

Lord Janner of Braunstone: My Lords, is my noble friend aware that, although Morocco has signedthe open skies treaty with the European Union, it continues to be charged a higher rate of air passenger duty, similar to that charged to other non-EU nations that have no such agreement? Will he assure the House that this issue will be considered and that he will speak to colleagues at the Treasury and the Department for Transport to ensure that we find a just and fair solution to this obvious inconsistency?

Lord Mawhinney: My Lords, why does the Minister persist in referring to an open skies agreement,when those of us who have had responsibility for transport—and I may have been the last Secretary of State to negotiate an aviation agreement with the United States—know that the US is not into open skies and is not into open skies on this proposed deal, either?

Lord Bassam of Brighton: My Lords, I understand that there are varied and differing views on the current state of the negotiations and on what Europe sees as a viable and desirable outcome. It is important to understand the deal that is on offer. The draftdeal would end the current restrictive Bermuda II agreement, which severely constrains UK/US services. For the first time, it would allow UK airlines to flyto any point in the United States, rather than to the current restricted list of destinations, and it would end all limits on frequencies and fares. It would also end the current restriction on access to Heathrow to just two UK and two US carriers and it would allow UK airlines to fly to the US from any other European member state. So the deal that is on offer, which is under discussion, takes us forward some way. The points made by my noble friend are all important elements of the continuing discussions.

Lord Rix: asked Her Majesty's Government:
	What is their response to the report by Mencap, Death by Indifference,on the premature deathsof six people with learning disabilities while in National Health Service care.

Lord Hunt of Kings Heath: My Lords, the Government are shocked and saddened to read ofthe deaths of the six individuals highlighted inthe Mencap report. Every person with a learning disability should be treated with care, dignity and respect. In response to the publication of the report, the Secretary of State for Health has confirmed that there will be an independent inquiry in order to learn lessons and ensure that change happens.

Lord Patel: My Lords, does the Minister accept that there is ignorance among many healthcare professionals of learning disability, which leads to their failure to involve patients' families and carers?Is that an issue that needs to be addressed if the healthcare of people with learning disabilities is to improve?

Baroness Neuberger: My Lords, I am sure that the Minister is aware of the Joseph Rowntree Foundation report, Responding to the Pain Experiences of People with a Learning Difficulty and Dementia, whichcame out last year. It highlighted a generalised but concerning belief that people with a learning disability have a high pain threshold. Given the debates that have taken place in your Lordships' House in the past month, what can the Government do as regards guidance about pain issues, particularly in palliative care, for people with learning disabilities?

Lord Rooker: My Lords, I beg to move the Motions standing in my name on the Order Paper.
	Moved, That the draft scheme and regulationslaid before the House on 31 January and 8 February be approved. 8th and 9th Reports from the Statutory Instruments Committee, Considered in Grand Committee on 7 March.—(Lord Rooker.)

Lord Falconer of Thoroton: My Lords, I beg to move that this House is of the opinion that a reformed House of Lords should be fully appointed.
	Moved, That this House is of the opinionthat a reformed House of Lords should be fully appointed.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that this House is of the opinion that a reformed House of Lords should be composed of20 per cent elected Members and 80 per cent appointed Members.
	Moved accordingly, and, on Question, Motion negatived.

Lord Falconer of Thoroton: My Lords, I beg to move that this House is of the opinion that a reformed House of Lords should be composed of40 per cent elected Members and 60 per cent appointed Members.
	Moved accordingly, and, on Question, Motion negatived.

Lord Falconer of Thoroton: My Lords, I beg to move that this House is of the opinion that a reformed House of Lords should be composed of50 per cent elected Members and 50 per cent appointed Members.
	Moved, That this House is of the opinion that a reformed House of Lords should be composed of50 per cent elected Members and 50 per cent appointed Members.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that this House is of the opinion that a reformed House of Lords should be composed of60 per cent elected Members and 40 per cent appointed Members.
	Moved, That this House is of the opinion that a reformed House of Lords should be composed of60 per cent elected Members and 40 per cent appointed Members.—(Lord Falconer of Thoroton.)

Lord Falconer of Thoroton: My Lords, I beg to move that this House is of the opinion that a reformed House of Lords should be composed of80 per cent elected Members and 20 per cent appointed Members.
	Moved, That this House is of the opinion that a reformed House of Lords should be composed of80 per cent elected Members and 20 per cent appointed Members.—(Lord Falconer of Thoroton.)

Baroness Anelay of St Johns: I shall speak also to Amendments Nos. 43, 45 and 46. They probe the relevance of a person's mental state to the ability of a court to impose a serious crime prevention order on them. They ask the Government to define what is meant by the term,
	"any other aspect of his mental state".
	It is not made clear in the Explanatory Notes.
	Clause 4 appears to treat those with mental incapacity or mental ill health inappropriately. It supplements Clauses 2 and 3 and contains further provisions for a situation where a third party is accused of facilitating the commission of a serious crime by another person—in some circumstances, even where that offence is not committed.
	The Committee will recall that the facilitator may find himself—despite Jack Straw's announcement last week, I shall continue to refer to "himself" to savethe time of the Committee—made the subject of a serious crime prevention order that can seriously constrain his professional and personal life.
	Clause 4(2) provides for the occasions when a person is accused of facilitating a serious crime thatis committed, whereas subsection (3) relates to occasions when the respondent conducts himself in a way that is likely to facilitate the commission of a serious offence even when it is not then committed. Subsections (2) and (3) appear at first reading to give respite to a third party who is carrying on an honest business or other activity and does not intend to facilitate serious crime. On the Bill's first day in Committee, the Minister was keen to assure the Committee that innocent third parties should not in any way face difficulties as a result of the operation of Part 1.
	The clause requires the court to ignore any act that the respondent or defendant—whatever one wantsto call them—can show was reasonable in the circumstances. As ever, I would much prefer to avoid the adoption of the reverse burden of proof, which can be objectionable. It looks as though worse is to come, because both subsections (2) and (3) are subjected to the further requirement that the court must ignore the intentions and other aspects of the mental state of the respondent at the time of the act in question—not "may", but "must", ignore those other aspects.
	On the first day in Committee, we debated at length the question of intent. Although I am still uneasy about the Government's position, I have read Hansard since then and I am prepared to review my initial scepticism. There may be some need for amendment and improvement; I am looking closely at that. The problem is that the injunction in Clause 4, that the court must ignore the person's mental state, does appear extraordinary. The Explanatory Notes, at paragraph 26, explicitly state:
	"This means that it does not matter if the respondent did not, for example, intend to facilitate the commission of a serious offence, or had no knowledge that he was conducting himself in a way that was likely to facilitate serious crime".
	It would appear that, as a consequence, the court would be required to ignore a person's mental health or mental incapacity; otherwise what does "mental state" mean? I do not believe that the Government's intention would be to treat those with mental ill health or mental incapacity in that way. If it is the Government's intention—I notice that the Minister shakes her head and says it is not—I would wish the Government to say why they thought that it was a proportionate way of proceeding. In drafting this part of the Bill, did the Government consult organisations that are expert on matters of mental health and mental capacity? If so, which ones, and what was their response?
	Additionally, do the Government intend that this provision could or would prevent the court taking into account the fact that a person had been subject to duress; so there was no question of mental incapacity or mental ill health, but perhaps they had been subject to duress and were in a mental state of fear when they conducted themselves in a way that the Government believe is enough to make them a likely subject for a serious crime prevention order? I ask the question against the background that the Court of Appeal recently made decisions in another field, immigration and asylum law, regarding the impact of someone being in a state of fear. I would be interested to see how that will impact on the provisions in this clause.
	On the point about "mental state" as a term in this clause, can the Minister tell us what other precedent there is for statute requiring a court to ignore a person's mental state? On the technicalities of my amendments, Amendments Nos. 42 and 45 simply remove paragraph (b) entirely from subsections (2) and (3) and the other two amendments remove the references to,
	"any other aspect of his mental state".
	I beg to move.

Baroness Scotland of Asthal: I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Dholakia, for their helpful indications on how they propose to deal with this matter. Before dealing with the specific amendments, it may be helpful if I explain why we have decided to deal with the mental health element and the mental element as we have. That may elucidate the position in a way which I hope the noble Baroness and the noble Lord will find helpful.
	The Bill is drafted as it is—with no mental element included in the court's consideration of whether a person has facilitated serious crime or has acted in a way that was likely to facilitate it—for this reason. It is expressly stated in Clause 1 that the orders will be granted by the court only when they will prevent the harm caused by serious crime. That prevention willbe occasioned by terms that are reasonable and proportionate.
	In that context, there will be instances when the need to prevent this considerable harm will mean that an order would be appropriate where it would be almost impossible to show the suggested element of intention or recklessness; for example, where a person who owns a string of lodging houses that have been found on several occasions to contain individualswho have been trafficked or smuggled, with the accommodation paid for by others. A first option for law enforcement might be to approach the owner and make him aware of the problem. But when it continued to happen he could potentially successfully argue that he had no knowledge that these people were being trafficked or smuggled, and so could not have the requisite element of intention. Similarly, with a large number of people coming and going, he could argue that he had neither the ability nor the time to check closely each person. In such a situation it would be difficult to prove an element of recklessness if the person could argue that he had no means of checking whether the person was or was not an illegal immigrant. Therefore, an order which required the owner to provide law enforcement for a limited period with a list of those staying in the houses, or where people's stay was paid for by a third party, would be a reasonable and proportionate response to prevent those houses being used as stepping stones on the way to people trafficking.
	It is sad to reflect that there are those who simply do not care for what purpose their property or services are used. In those circumstances it must be right to assist the prevention of crime by imposing on them a reasonable and proportionate contribution to making sure that these offences are not committed again.
	Secondly, it would be inappropriate to import into a civil order concepts of intention and recklessness, which are essentially criminal in nature. Finally, and perhaps most importantly, Amendments Nos. 42 and 45 in particular, but also all the other amendments in the grouping, should be looked at in the context of Clause 4(2)(a) and (3)(a), which the Committee debated on the previous occasion. They provide that any action which the potential subject of the order can show was reasonable cannot constitute either facilitating, or acting in a way which was likely to facilitate, serious crime for the purposes of this legislation. This provides a very strong safeguard to ensure that those who act reasonably can never be the subject of an order.
	The noble Baroness properly raises the issue of those who may lack capacity and may not be able to understand. That is why we come back to the reasonableness issue. I am sure that these issues would be raised. If the authority bringing the order did not have the sense to do that, I am relatively confident that the judiciary would. We need to think about how these orders would be used. There is a high threshold for the authority to meet. We and they would prefer to work with individuals on a consensual basis because many good citizens, once they are apprised of a difficulty, are more than happy to respond in a wholly proper way.
	For those reasons we do not think that the changes that the noble Baroness seeks are necessary. Because we did not think that they were necessary we did not consult the mental health charities. The noble Baroness will know that if the measure did have an impact we would have done so. We hope that the noble Lord and the noble Baroness will be satisfied and agree with us that the way in which the measure is structured provides the safeguards that both they and we wish to see.

Baroness Carnegy of Lour: It is quite difficult for a lay person to follow the rather complicated argument that the noble Baroness has had to deploy on the amendments. As I read it, in deciding for the purposes of this Part whether a person facilitates the commission by another person of a serious offence,
	"the court must ignore ... any ... aspect of his mental state".
	That is a very strange thing to say. A mental state can be being agitated, having a headache, or being tired, like I am. After trooping through the Lobbies, my mental state is rather strange at the moment. It seems to me that there must be more clarity than that. My noble friend has asked whether the phrase appears in any other legislation. Whether it does or not, I do not think it says anything clear at all. As it is something that must be ignored, it surely must be made clearer.

Baroness Anelay of St Johns: The noble Lord, Lord Thomas of Gresford, is absolutely right. Of course, on the previous occasion, the noble Baroness proposed that, when a trader was carrying on a business, the police could go along and say, "Do you realise that the way in which you're doing this is assisting serious crime?". The person would then have the chance to say, "Well, I won't do it any more", or he could proceed and find himself subject to an application for an order.
	Like the noble Lord, Lord Thomas of Gresford, I suspect, I do not want a person who has no intent and who does not wish to facilitate crime unwittingly to be caught out by this measure. That is what I want to try to achieve through discussion with the Minister between now and Report. At the moment, I still think that a person with normal good business practice could find himself in difficulty in court when, by the look of it, neither the Government nor I wish that to happen. The noble Baroness has said repeatedly that she does not want honest traders to be nabbed but I think that this does nab them. So I am still concerned, but I am particularly concerned about those who would not be able to form intent anyway. Therefore,I tabled my secondary amendments, Amendments Nos. 43 and 46, because, from my point of view, they address the specific problem of those who are not capable of forming intent. It is not a case of ignoring the intent because they cannot form it.
	I think that I have outlined my concerns as a sufficient basis for bringing this matter back on Report, although I hope for a more constructive resolution at that stage. I beg leave to withdraw the amendment.

Lord Dholakia: We have similar concerns. This deals with Clause 4, a supplementary provisionabout involvement in serious crime, which is further supplemented by Clause 76, under which orders may be made. Our concern is whether we reject the entire order or let one offence go through because we do not see how we can scrutinise each and every offence being added. That causes us concern; it would be helpful to know the Minister's thinking.

Lord Crickhowell: I was away when the Bill started its passage through the House, so I come to it fresh. Looking seriously at this schedule for the first time, I am struck by the strange mix of serious offences—things included and omitted. We are later to have an amendment about armed robbery, which is not included.
	As a former chairman of the National Rivers Authority, I was a little surprised to see an offence under Section 1 of the Salmon and Freshwater Fisheries Act 1975 at the top of the environment list—fishing for salmon, trout or freshwater fishwith prohibited implements. I am against that being permitted, but it hardly seems an offence in quite the same category as drug trafficking, people trafficking, prostitution, child sex, money-laundering and armed robbery. If we start with a seemingly curiously constructed list, it is rather odd that it can be amended simply because the Secretary of State decides to add to or subtract something from it.
	If we are to have a schedule of this kind, with all the possible consequences that have been spelled out, the Government must justify what is included in that list and not just be able to add to or subtract from it at will. I shall be interested to hear what the Minister has to say on this. Looking at the list, it seems that we must keep the whole thing tightly under control.

Baroness Anelay of St Johns: I reassure my noble and learned friend that we shall come back to it shortly. I hope that we are able to deploy the arguments more fully in Amendment No. 48.
	I find it difficult that we must leave the schedule to the vagaries of an order-making process. To have these new serious crime prevention orders is a serious step. My noble and learned friend Lord Mayhew referred to the need for flexibility on some occasions. He is right. The Government argue for flexibility throughout, but the Government's flexibility tends to be a straitjacket for everybody else in how they can or cannot behave.
	We shall need to look at this more closely, particularly when we have had an opportunity to look at the Government's justification for what is in the schedule when we get to Amendment No. 48. Forthe moment, however, I beg leave to withdraw the amendment.

Baroness Anelay of St Johns: "Ah", says the Minister. I know from my noble friend Lady Carnegy of Lour that fishing illegally is a very vexed and serious crime. Since it is a serious crime, why is it incapable of being dealt with by way of a criminal prosecution? That is why I tabled the amendment to exclude fishing. I would like to know why it has proved impossible—if it has proved impossible—to bring those culpable of that offence to book by way of a criminal prosecution.
	Amendments Nos. 48 and 50 look at another offence that I would have thought might have been on the list, which is armed robbery. Why has it been omitted? I am grateful to Mr John Letizia of the British Bankers' Association for his briefing on this matter and for his welcome for my amendments. He points out that last year, British Bankers' Association members suffered 118 armed robberies, incurring significant losses and resulting in injuries to staff and customers. He also asked that I consider widening, perhaps on Report, the definition of armed robbery to include a wider range of weapons and firearms. He helpfully provided me with a table giving details of the number of armed robberies suffered by banks, building societies, post offices and cash security firms in 2006. It is alarming to see the dangers faced by staff, and sometimes by customers, in those businesses. The table shows that while the use of imitation firearms accounts for a significant proportion of robberies, criminals also regularly use knives, machetes and other implements when committing a robbery. The choice of weapon may vary between criminals, but the threat and use of violence is a constant and increasing reality. The industry has invested heavily in trying to make the banking environment safer, but there is still a serious threat to it. I shall be grateful if the Minister will address why armed robbery is not in the Bill iffishing is.
	I remain concerned about what my noble friends described in the earlier amendment as a rather eclectic mix of crimes that appear to have wandered into Schedule 1. What consultation was carried out by the Government, with whom and when, on which crimes should be listed in Schedule 1? I note that the Government's consultation paper New Powers Against Organised and Financial Crime did not give information about the list of crimes that the Government intended to put in Schedule 1. The questions that were listed for respondents to consider did not ask them to say which crimes should come within the remit of an organised crime prevention order, as it was called in the consultation paper. Respondents were not given any clear indication of which crimes the Government would ultimately put in Schedule 1. The case studies on pages 36 and 37 refer to drug trafficking, money-laundering and vehicle ringing, but there is nothing about fishing for salmon. Why have we got the list in Schedule 1, where does it come from and what is the rationale? I beg to move.

Lord Thomas of Gresford: I am afraid there is danger of a split on the Front Bench of the Liberal Democrats, because my noble friend Lord Mar and Kellie is very proud of his hereditary right to trawl for salmon in the estuarial waters of the Firth of Forth. It is clear that for him the offence in paragraph 11(1) of Schedule 1 is very serious. I, too, am a bit worried because I recall that many years ago I lent my 12 year-old nephew a rod with mackerel feathers on it and told him to go off and fish in the sea at Uist. Off he went to have the rod confiscated by a very large—about six foot six—Liverpudlian ghillie. I was sent down there to assert rights of ownership, only to be told where to go by the Liverpudlian ghillie. I ended up crawling to the local laird for my rod back. Would innocently providing an instrument come within Clause 4(2)(b)? I was without any knowledge that we were committing a criminal offence and Iwas not reckless, but it seems to me that, under this legislation, I could have been subjected for participating in a criminal offence to an order in the High Court that would have me house arrested. That is where this legislation leads.
	When we talk about salmon fishery in paragraph 11, are we talking about salmon in fresh water or in the sea? Does it cover the illegitimate poaching of salmon off the Farne Islands, which is one of the reasons why there are no salmon in the rivers? The noble Baroness spoke about people getting into crime; there is no point in getting into the crime of poaching salmon in rivers these days because there are no salmon in them, as I know to my cost. This schedule is a mishmash. What has happened is that a few phone calls have been made to every government department asking them to come up with a crime that can be put in the nice new schedule, so that we can lock people up in their own homes if they commit it. I know it is absurd, but that is because the Bill is absurd.

Baroness Scotland of Asthal: I invite noble Lordsto look at the front leaf of the Bill. I know that sometimes that may be difficult for the noble Lord, Lord Thomas of Gresford, so I invite him to look at it with me. It states that,
	"the provisions of ... the Bill ... are compatible with the Convention rights".
	House arrest would not be compatible with convention rights. I hope that he and I can agree on that, at least.

Lord Dear: I shall address the Committee briefly on fishing with rods and lines in rivers and on armed robbery. They appear to be miles apart but the principle is very much the same.
	As I understand it, Section 1 of the Salmon and Freshwater Fisheries Act 1975 applies to rivers and estuary waters. I, too, fish for salmon, often without much success. Poaching of salmon by organised gangs can take a substantial form. Years ago a gang dropped a woollen sock filled with cyanide into a river, taking out hundreds of salmon in one go. Quite literally, a killing was made by the perpetrators of that offence. Highly organised salmon poaching disrupts people like me and other noble Lords when fishing; but, much more seriously, it affects the fragile rural economy of the area in which it takes place.We can therefore see the seriousness of the Bill. The difficulty is that it can apply all the way down to somebody using a rod that is prohibited. There is then an argument about proportionality, which is a matter for discussion elsewhere.
	With the greatest respect to the noble Lord, I must say that fly-tipping in this sense is not dropping a cigarette paper or something similar but tipping tonnes of toxic waste into a watercourse or the sea. That is done at very high reward for those disposing of it. One needs to bear that in mind.
	I too was surprised that armed robbery was not included. On the basis of figures that I have notyet had a chance to substantiate, I learnt only this morning about a spate of robberies of cash in transit in the capital, in which many millions of pounds have been stolen. I understand that there has been a threefold increase of that type of robbery. In many of those incidents in the past 12 months, knives have been used. Why are only firearms included in the amendment? We all know—it has already been referred to in your Lordships' House—the ingenuity of criminals who, one concludes, will immediately turn away from firearms and use knives, petrol or a range of other things. One might look at the American legislation, which uses the term "deadly weapon", which is strictly and carefully delineatedin USA law. An amendment could encompass something like that. I vigorously suggest that armed robbery should be included.

Lord Crickhowell: I, too, strongly support the inclusion of armed robbery. I entirely understand why my noble friend has said that.
	I return to environmental issues. I had a similar experience to that of the noble Lord, Lord Thomas of Gresford, in my own garden. I handed a plastic rod with some paste or something attached to the end of what was little more than a piece of string to the small son of a distinguished general and told him to go and keep quiet. He sat on the bridge over the stream that runs around my garden in Wales. Suddenly he came running back in great distress because the local bailiff had grabbed him and told him that he was committing an offence.
	I have a more serious point about the environment. As a former chairman of the National Rivers Authority, I understand that, given the nature and seriousness of the crime, one might be puzzled as to why we are including it in the Bill because currently there are a whole string of perfectly good laws that can deal with these offences. The problem we had at the Environment Agency was not that there were no laws to prevent offences of this kind or, indeed, the very serious offences involving the deposit, treatment or disposal of waste; there are very effective laws. One of the first things we succeeded in doing a few weeks after the National Rivers Authority was set up was to have the Shell oil company fined £1 million for an offence in the Mersey. There are penalties. The difficulty usually is that the magistrates will not impose adequate penalties when people are brought to court. It is not because the penalties are not available.
	The noble Lord, Lord Thomas of Gresford, is absolutely right: there was a trawl around government departments and the Department for the Environment, Food and Rural Affairs put in a bid. It had to put in something, so it included a number of offences that have been perfectly successfully dealt with by existing laws for many years. Yet armed robbery has been left out, when most of us would have thought it should be included in any list.
	I entirely understand and support the whole purpose of the Bill. I was the chairman of an IT company dealing with complicated IT systems; therefore, I am familiar with the whole business of modern crime. I understand why we should have a Bill of this kind; its purpose is spelt out on page 1. However, bearing in mind the serious consequences of imposing these orders, we should be pretty selective about how we use the legislation. If we use it where necessary, Ministers will have my total support, but we should be very cautious about applying it to cases where there are perfectly good existing laws and where there is no evidence that the kind of criminal activity with which we are concerned is part of the problem covered by the environment clauses, among others.
	I hope that the Government will give careful thought to whether the list is right. If they want of both Parliament and the public—and that is rather important—in pursuing this whole business and doing so in the courts, an offence's inclusion must be really necessary; it must not be an add-on, which would merely cause aggravation.

Lord Dholakia: I have no difficulty in accepting the explanation that the Minister offered at Second Reading about matters relating to fishing. The last thing I want to do is to fall foul of my noble friend Lord Mar and Kellie.
	We talked about armed robbery and fishing but not about what constitutes a serious crime. I raised that at Second Reading. We were given to understand atthe briefing session that the extension of powers to the Serious and Organised Crime Agency related to drugs, fraud and human trafficking. I have no difficulty with that. Of course those are serious matters. But, rather than talking at this stage of whether armed robbery is a serious crime, would it not be better to talk about what constitutes a serious crime, and if something is a serious crime, whether it should be included in this legislation? No matter what we talk about here, if you tell the public that fishing is a serious crime but that armed robbery has not been included, many questions would be asked as to why not.

Lord Bassam of Brighton: Murder is a separate category: if you are convicted of murder, it is a very serious offence, you are taken out of the frame, you are unlikely to be in a position where you can be reconvicted. That is not the same with other serious offences such as, for instance, armed robbery and robberies conducted using a dangerous weapon.
	I take issue—in a sense, the House took issuewith itself because there was considerable debateon the Benches opposite—on the argument about environmental offences. I agree with the noble Baroness, Lady Carnegy of Lour, and the noble Earl, Lord Mar and Kellie—although he has not spoken in this debate, we have been told what his views are.I agree with the noble Lord, Lord Dear, that environmental offences are very serious. That is precisely why they are in the schedule. I have thought very carefully about this issue. People are nowcoming to the view that environmental offences are increasingly serious. Only this week, we brought forward a climate control Bill. That underlines the point.

Lord Bassam of Brighton: I will come to that point, but I want to finish the first issue, because it is important. The debate in the House underlined the increasing seriousness with which our society views environmental crimes. That is why the list is there. The noble Lord, Lord Dear, gave a very good example on salmon fishing of why such an offence is serious; the noble Baroness, Lady Carnegy of Lour, did exactly the same. They are absolutely right: vast sums of money can be made by committing such offences.
	Many years ago, and it seemed strange at the time, my local authority had a rare orchid collection. We spent a lot of money protecting those rare orchids, and I was told that they had considerable value if there was a market for them. The idea that rare species can be stolen and sold is anathema to me and, probably, to many people in this country. That is why we consider environmental offences, whether they relate to flora, fauna, fishing or whatever, as serious.
	The noble Baroness partly answered her own point because the orders relate to the prevention of crime. That is why they are set out as they are and why the order-making power is there. Of course we expect that the offences will be dealt with in the normal way, but this is a preventive method. The applicant authority in these cases must prove to the standard set out in McCann, which is likely to be very close to beyond reasonable doubt, that the person who is the proposed subject of the order has been involved in serious crime. That is in Clause 1(1)(a), as I am sure all Members of the Committee appreciate.
	On the question posed by the noble Baroness about where the list of offences came from, for the most part they originate from the schedule of lifestyle offences included in the Proceeds of Crime Act, with which I am sure noble Lords will be very familiar.We indeed added certain offences, including the environmental offences, but only after careful consultation with stakeholders.
	In particular, representations were made to us by ACPO on the proposal to include salmon and freshwater fisheries offences. We received advice from the ACPO environmental and wildlife crime lead officer, Chief Constable Richard Bruntsrom of north Wales, who obviously, considering the environment that north Wales covers, has considerable experience in making such recommendations. We have consulted generally and widely among law enforcement authorities and agencies, following which we are keeping the matter under review. It is for that reason that, although I cannot accept the wording set out in Amendments Nos. 48 and 50, we want to give them careful consideration.
	So we resist Amendments Nos. 49 and 51 but we are prepared to have further discussion outside the Committee about Amendments Nos. 48 and 50. I hope that, having heard that, the noble Baroness will see the rationale behind our approach and our desire to ensure that the schedule is as comprehensive as many noble Lords have suggested it needs to be.

Baroness Anelay of St Johns: I did say that I would try not to stray into the realms of later Liberal Democrat amendments, even though the noble Lord tempts me to do so. It certainly appears from the Bill that the Government intend what the noble Lord suggests to happen. There appear to be provisions to enable someone who has been acquitted then tobe subject to an application for a civil order. Wewill consider that when we come to particular amendments that deal with the supervisory role of the DPP and that of other directors and the Attorney-General. I assure the noble Lord that I shall address those questions, too.
	On Amendment No. 48, I am grateful to the Minister for at least trying to flesh out the Government's approach to the list and how they ended up with this rather odd collection of crimes that are all serious in some respects, depending on the level at which they are committed. I was rather alarmed that at one stage the Minister said that the Government were now consulting stakeholders on the content of the list, and said later that some aspects such as environmental issues were added after consultation. His response to my original question about the consultation and where it was was rather mixed, unless I misheard him.

Baroness Anelay of St Johns: I shall also speak to Amendment No. 62. I note that Amendment No. 61 in the name of the noble Lord, Lord Dholakia, is grouped with them. Naturally, I will listen to his presentation of that before I comment on his position.
	Under Clause 5(7), the actual prohibitions, restrictions or requirements that are to be imposed by the serious crime prevention order do not have to be set by the court in detail and stated in the order. They can also be,
	"determined in accordance with provision made by the orders".
	The court may therefore give a general indication but leave the detail to be worked out later. How would that be practical? How would it enable the person subject to the serious crime prevention order to make proper representations in court as to the potential impact of the order on them if they do not know its precise terms? The order can also include,
	"provision conferring discretion on law enforcement officers".
	On our first day in Committee, my noble and learned friend Lord Mayhew of Twysden referred in particular to this part of the clause and set out the difficulties, as he saw them, with that. I agree entirely with what he said then.
	This part of the clause would mean, for example, that an order could state merely that a Mr Smith shall comply with anything the police may tell him to do which they think is necessary to stop him engaging in criminal activity. That is a very broad brush and means that the police will have a far more direct way of ordering the person to report at such times as they may later direct. However, that is not what the Bill says; it leaves a wide degree of legal uncertainty, which we find unacceptable, especially in connection with an order that, if breached, could lead to up to five years' imprisonment.
	Experience to date of both ASBOs and control orders reveals several risks about how serious crime prevention orders might operate in practice. There are also dangers that an order could include standard restrictions rather than the order being tailored to the particular circumstances of the individual, and that there would be no regular review of the order with the result that restrictions would stay in place that were no longer necessary or proportionate. We will come later to the provisions in Clause 17 for variation, which we think do not necessarily resolve that issue.
	Amendment No. 60 therefore deletes subsection (7) altogether, thus removing the provision allowing the courts to impose an order which did not give the detail of the prohibitions to be observed, and is simply a way of probing why the Government have drafted the subsection in this way. Amendment No. 62 would remove the powers of the courts to impose an order that might simply direct a person to do whatever a law enforcement officer might or might not tell them. It deletes the words,
	"including provision conferring discretion on law enforcement officers".
	The Government have provided the Committee with an example of when this provision might be used. Paragraph 33 of the Explanatory Notes states that:
	"An example of this would be where a term of an order stipulates that certain information had to be provided to law enforcement officers on a regular basis, but that law enforcement officers could stipulate at a later time the means or specific timing of that information's provision".
	There appears to be a notable distinction between this example and what the Bill would actually allow. The example refers to law enforcement officers specifying reasonable means by which a person should perform a requirement imposed by an order of the court,but not setting the requirements or prohibitions themselves. The amendment to leave out the subsection would permit the kind of scenario given in the Explanatory Notes, but would allow the courts to impose restrictions, requirements or prohibitions only on an order itself.
	The current drafting of subsection (7) is unacceptable and we will need to find a way of resolving this on Report. There are ways to achieve that, but we need to look at it carefully. I was encouraged to believe that the Government might take a reasonable course in this matter when the noble Baroness, Lady Scotland, said on the first day of our consideration in Committee:
	"It may be appropriate to amend it"—
	subsection (7)—
	"subsequent to our discussion, to give it greater acuity than it has at present.—[Official Report, 7/3/07; col. 259.]
	I hope that bodes well for our future discussions on this. I beg to move.

Lord Bassam of Brighton: I have no intention of inhibiting the debate, but I rise just to say to noble Lords that we intend to be helpful on this amendment. That may allow noble Lords to shorten their commentary. I shall explain our thinking on this.
	The intent behind the clause is to enable law enforcement officers to be able to specify certain minor elements of how an order should be complied with. For example, where the terms of an orderstate that a person must provide information to law enforcement officers on a regular basis, it seems reasonable to allow them to specify, for instance, that the information should be provided to a specified person at a specified time each month. This is simply a means of trying to provide a practical system which will work effectively.
	As my noble friend Lady Scotland hinted on our first day in Committee, we have been giving the issues raised by Clause 5(7) some thought, and having heard the points made by several noble Lords at Second Reading we have been looking at the provision again to see whether it requires further amendment. What I can say today is that while we cannot support these amendments for the reasons I have just outlined and because we believe the policy intent behind it serves a useful purpose, we understand the concerns and issues raised here and we should like to take the amendments away in order to bring something back with which all noble Lords, in particular the movers and supporters of these amendments, will feel content. Having said that, I hope that the noble Baroness will feel able to withdraw her amendment.

Lord Mayhew of Twysden: I am grateful to the noble Lord, Lord Lucas, for this amendment. I like the sound of it very much. It is not as if the record of the Home Office in maintaining accurate statistics has been particularly glorious over recent years, and yet we shall certainly want to keep the use of these orders under review. It is important that we should have accurate information about them, and this seems to be an admirable way of ensuring that we have a register where each one is recorded. I hope it will find favourable reception.

Lord Burnett: We also support the amendment of the noble Lord, Lord Lucas. In it he states that the Secretary of State must maintain a register of all serious crime orders currently in force. One would hope that that those orders would continue to beon a register that was available for scrutiny, notwithstanding that they had then ceased to be in force. Then at least we would have not just current orders but older orders too, so that we could gauge exactly what has happened in the past as well as what is currently happening.

Lord Bassam of Brighton: That was a very useful discussion, and I want to let the noble Lord, Lord Lucas, know that I have quite a lot of sympathy with the purpose behind this amendment. That said, I am not in a position to accept it, but I will make some comments that he may find offer him some comfort.
	Noble Lords have spoken about the need for an audit, for transparency and for accurate record-keeping. All those things are right. Having listened to what noble Lords were saying, I was thinking back to when we put in place legislation on football disorder and created football banning orders. That created a situation where there needed to be careful records kept of those who were subject to particular restrictions on their movement. The important thing there was to have accuracy in recording so that careful preventive measures could be taken, particularly at points of departure from the UK.
	This amendment would place an obligation on the Home Secretary to maintain a register in relation to these orders and make it open to public inspection. I will come back to the points just made by the right reverend Prelate, because they are important. I can say that we are currently setting up a working group to look at the practical implications of implementing the orders to examine the issues the noble Lord,Lord Lucas, has raised in this debate. Through its practitioner representatives, which will include the judiciary, the group will discuss the best way to ensure that these orders are used in the most effective and co-ordinated way possible between law enforcement, the applicant authorities and the courts. That set of discussions will need to include a careful look at systems that will be necessary in terms of recording and monitoring the use of the orders. My guess is that there will have to be a register of sorts kept for those purposes. It would be wrong to use this amendment to pre-empt the discussions of those with expertise in this field. The amendment accepts a particular system for recording the orders, and it would not be right to specify that in advance of the practitioners having the intelligent discussions they need to in order to make the system workable.
	The noble Lord sets out in his amendment that a register should be open to the public, and there are a number of objections to that in principle, not least because a blanket disclosure of the personal details of those subject to an order would not be compatible in any event with the European Convention on Human Rights. Perhaps on another day the noble and learned Lords, Lord Lyell of Markyate or Lord Mayhew of Twysden, might argue that point, and I would be honour bound to accept it. Any interference of the sort suggested by the amendment with the right to a private and family life under Article 8 would need to be in accordance with the law, in pursuit of a legitimate aim and necessary to a democracy such as ours. It would be impossible to argue that we had given due consideration to whether disclosure in a specific case has met that Article 8 test if we were making blanket disclosures on a publicly accessible register.
	I understand the point the noble Lord, Lord Lucas, is making. There are to be some intense practitioner discussions on this. The likelihood is that there will have to be a proper process put in place to carry out auditing and monitoring and to ensure that there is transparency in record-keeping and so on, but we could not accept the amendment in any event because of the ECHR considerations. Perhaps that will not satisfy the noble Lord, but the approach he is suggesting we adopt is flawed, even though we will clearly have to have proper record-keeping and monitoring to make this process effective and seen to be so.

Lord Lyell of Markyate: While I fully understand the family considerations which moved the most reverend Primate the Archbishop of York and the concerns of the Minister about compatibility with the European convention, I am not sure whether the issue is open and shut. I confess that I have not done alot of homework on it but there seem to be two competing features. For all that these are civil orders, they are likely to be found to be broadly criminal in European convention terms and such proceedings are normally conducted in public. I cannot remember to what extent Criminal Records Bureau information is available to the public; it may not be, but it is certainly available to authorities. I ask the Minister to go back over that ground and give us chapter and verse at Report on convention compatibility.

Baroness Anelay of St Johns: I shall speak to Amendments Nos. 65, 66 and 130 as well. Clause 7 provides that the Secretary of State may, by order, expressly exclude the application of a serious crime prevention order to those people who fall within a specified description. The order is currently subject to the negative resolution procedure. Our amendment has adopted a probing approach and would make the process subject to the affirmative procedure. We have tabled it simply to ask the Government which classes of people might be added in the future by this procedure. At present, the only class specifically excluded in the Bill is those who are under the ageof 18.
	The fifth report of the Delegated Powers and Regulatory Reform Committee states that it is common practice for powers to except from a statutory regime and common practice that the powers should be subject to the negative procedure. We recognise that, and we are not contesting the procedure in this case; even though we have tabled this amendment, it is probing. However, I wish to follow up the committee's observation at paragraph 8 in particular, when it states that the memorandum from the Home Office says that,
	"there may be certain persons that should not be capable of being subject to a serious crime prevention order because it would not be appropriate for them to be so subject. The House may wish to seek a fuller explanation of the Government's intentions for the use of this power".
	I certainly would like a fuller explanation. I agree with the committee that the Government have not yet given further information; the memorandum could hardly be more vague on this point, hence these amendments.
	Might the Government, for example, consider exempting those who have a history of mental incapacity, to return to some of my earlier concerns? At the moment, the answer that was given by the Home Office in the memorandum to the Select Committee appears to undermine some of the arguments that were used against me earlier in terms of a person's mental state and the issue of intent. I feel sure that that is not the objective of this part of the Bill, but it is important for the Government to flesh out which categories of people they think could have this blanket exemption in future. I beg to move.

Baroness Anelay of St Johns: I am grateful tothe Minister for his indication of the Government's approach to Amendment No. 66. It was brought forward in the spirit of not wishing to undermine the Government's approach on intent. I made it clear earlier that I am carefully considering our position on that before Report. I was seeking for the Committee to consider which category of persons might properly be completely excluded. This was the only category that I could come up with which might properly be defined and definable, without spreading the exemption too far. I am grateful for the Minister's indication that he will give it further thought.
	I was not at all surprised by his response to the affirmative resolution procedure amendments. There were tabled only for the purposes of probing. I beg leave to withdraw the amendment.

Lord Bassam of Brighton: The next group of amendments is rather long. For that reason, I propose that the Committee stage should now adjourn until8 pm.

Lord Thomas of Gresford: moved AmendmentNo. 67:
	Clause 9, page 7, line 2, leave out subsections (1) to (3)

Lord Thomas of Gresford: Yes, admonished me and indicated over and over again that house arrest is not involved. So in conjunction with the noble Baroness, Lady Anelay, over dinner, I decided that another acronym would be more appropriate. I thoughtof CODPO—that is, a confinement to domestic premises order—or, possibly, a POTODPO, which is a prevention of travel outside the domestic premises order. One or other of those acronyms is, I am sure, much more suitable and acceptable to the Minister.
	I turn to the group of amendments with which we are dealing and the notice that we have given of our intention to oppose many clause stand part questions in this part of the Bill. We have sought to confine the making of an SCPO, or CODPO, to the Crown Court, and only in circumstances in which a person has been convicted of an offence. The making of an SCPO might be more acceptable if a person has been convicted of a serious criminal offence and the Crown Court judge, who has heard all the evidence and come to a conclusion about the case, decides that, as part of the criminal sentence, he should issue a SCPO that would restrict the activities of the offender on release. That would mean that these orders would comply with what the Americans call due process and what we call the European Convention on Human Rights, in that they could be imposed only on proof on a criminal standard of specific offences. On that basis, we would find an SCPO more acceptable, although for other reasons we think that the whole concept is shot through with difficulty. I beg to move.

Baroness Scotland of Asthal: I thank the noble Lord, Lord Thomas of Gresford, for the brevity with which he outlined his amendments. With the greatest regret, I must tell him that I find the new shortened form no more attractive than the last, but I am confident that the noble Lord will continue to try.
	Amendments Nos. 67, 71 and 73 follow on from our earlier debate on amendments and clauses stand part relating to the making of orders in the High Court. I understand, now that the noble Lord, Lord Thomas of Gresford, has made it clear, that he on behalf of the Liberal Democrats does not find these orders as attractive as we do, but I hope that his conversion is still possible.
	Amendment No. 67 would remove the subsections in Clause 9 that provide the right for third parties to make representations in the High Court and Amendment No. 71 removes the reference to Clauses 20 and 21 from Clause 9(4). Those provisions relate to the Crown Court varying an order made by theHigh Court. Amendment No. 73 would remove Clause 9(5), which allows third parties to make representations at an appeal. Although subsection (5) is relevant to the Crown Court as well as to the High Court, I gather from the noble Lord's amendments that he wishes to expunge the High Court from any involvement at all in the making of these orders. Amendments Nos. 80 and 81 are similar in intent in that they provide for some of the consequential amendments that would be needed if the order-making power in Clause 1 were removed. I know that it will not surprise the noble Lord if I tell him that I must resist these amendments, as I have already made clear the necessity for the orders to be available in the High Court.
	The clauses touched on here provide the framework for the effective operation of the serious crime prevention orders. Clause 16 is necessary to provide for a maximum length of time for which an order may be enforced. It also provides for flexibility in determining when different terms of the order come into force, allowing the courts to specify such depending on the circumstances under consideration. So, for example, where the subject of the order is serving a prison sentence and is released during the lifetime of the order, it may be appropriate to specify terms in the order that are neither appropriate nor necessary while he is in custody.
	The noble Lord believes that unless an individual himself has been convicted of an offence and the court, at the time of the individual's conviction, is of the view that a prevention order should be made, then no order preventing the criminal acts of serious criminals should be made at all, notwithstanding the fact that one has identified a way in which crime can and should properly be prohibited in the future.The Government cannot agree with that view. The evidence that we have to date is that most serious criminals tend to be serial offenders. There is a high degree of recidivism among those who engage in serious crime as a way of being. If we are to interdict their criminal activities, we have not only to catch and convict them but also to take steps to better prevent them from engaging in those sorts of activity.
	Clause 17, which provides for variation, clearly shows why that is important. However, the first exception to the High Court in Clause 17 is that the Crown Court can vary an order if it convicts a person of a serious offence and an order has already been imposed on them. The second exception in Clause 17 is that the Crown Court can vary an order if it convicts a person for breach of an order. Under this clause, the subject of an order can apply for his order to be varied if there has been a change in circumstances affecting the order which means that the order or any terms of it are no longer appropriate. Where the terms of the order are no longer reasonable or proportionate, the High Court will amend them accordingly.
	Clause 17 also provides for the relevant applicant authority to make an application for variation at any time, not just where there has been a change of circumstance. This provides a means of ensuring that the orders maintain their focus and specificity throughout their life, ensuring that protection of the public afforded by the orders is maintained. An application by the relevant applicant authority could seek to make the order more as well as less onerous. We have already discussed why placing an obligation on the applicant authority would be both impractical and unnecessary. The clause builds on the safeguards for third parties in Clause 9 by providing them with an avenue to apply for variation.
	I am surprised that the noble Lord and, therefore,I take it, the Liberal Democrats are not attractedby this very careful and effective method of modification. The Committee will know that, if an individual was not involved, he can make an application, even if there has not been a change in circumstances, but only if it was reasonable for him not to have been involved sooner. We believe that that is reasonable. This second part of the test ensures that a third party who is not aware of the order until after it is made has an opportunity to put his case. This clause is a necessary and balanced approach to ensure that the orders can be kept up to date to protect the subject of an order from unreasonable conditions where circumstances have changed and to ensure that the public are protected as effectively as possible.
	Clause 18 provides a similar function to Clause 17 but in relation to an application for discharge of an order. I have already alluded to Clauses 20 and 21, which provide a power for the Crown Court to vary an order where the subject has been convicted either of a serious offence or of the offence under Clause 25 for breach of order. I appreciate that the noble Lord may simply have grouped all these amendments together to make a point, but one sees how necessary it is to look with great care at how these clauses link together.
	We have dealt with Clause 23 and the reasons for Clauses 33, 34, 35 and 36. All these deal accurately and well with some of the difficult issues that the court will have to bear in mind before making an order. I ask that these orders should be agreed to and that the noble Lord thinks again about whether it is appropriate to strike out these parts of the Bill as he seeks to do by virtue of his amendments.

Baroness Scotland of Asthal: I thank the noble Lord, Lord Henley, for setting out the reasons for his amendment; this is a probing amendment, so I shall go through this matter step by step in the hope that noble Lords can better understand the Government's intention and in the hope that we do not have to return to it at a later stage.
	The Bill as drafted provides significant safeguards and protections, especially in relation to ensuring that third parties are not unreasonably affected by the terms of an order. That is the kernel of what the noble Lords, Lord Henley and Lord Thomas of Gresford, are asking in relation to why "significantly" is used.
	We hope that some third parties will be disadvantaged by these orders, and I am confident that they will make life significantly harder for criminal associates who would normally work to commit serious crimes with or for the subject of an order—and for that we make no apology, because that is the whole purpose.
	However, regarding the other ramifications, it is possible that the proposed terms of an order or the terms of an order already in place will have knock-on consequences for individuals who are not involved in serious crime. It is vital that those circumstances are taken into account by the court when considering whether to impose, vary or discharge an order. As a consequence, Clause 9 allows third parties to make representations to the court in hearings concerning the making, variation or discharge of an order. Clauses 17 and 18 allow third parties, in certain circumstances, to make applications for the variation or discharge of an order.
	However, we need to set limits on the rights of third parties, so that the proceedings are not tied up with spurious or frivolous applications. The court should be obliged to hear from only those who genuinely need to be heard. It will be the court that makes the decision as to whether the third party is or is not significantly affected. As a result, Clause 9 sets out that a third party must be likely to be significantly adversely affected by the court's decision before being allowed to make representations. The courts will be able to make a reasoned decision as to whether an adverse effect is significant on the basis of the application by the third party.
	Clause 17 sets out that a third party can apply for variation only if a three-part test is met. First, the third party must be significantly adversely affected by the order. Secondly, one of two conditions must be met: either the third party made representationsat an earlier hearing, or an application in earlier proceedings other than under Clause 9, and there has been a change of circumstances affecting the order;or the third party has not appeared in earlier proceedings but he can show that this was reasonable in all the circumstances. Thirdly, the third party must not be applying to make the order more onerous. That test is a very important safeguard and sieve. Clause 18 allows a third party to apply for discharge of the order. The test is the same as in Clause 17 but the final limb does not apply because it is not relevant.
	The amendments would change the test inClauses 9, 17 and 18 to "adverse effect" rather than "significant adverse effect". The threshold formaking an application or being allowed to make representations would, therefore, be lower. We think that the current level in the Bill is the one at which the threshold should be set. If the threshold is set any lower, the court is liable to be overwhelmed with representations or applications; if it is set any higher, the court will not hear from those who have a genuine interest in the outcome of the hearing or those who should be in a position to make applications.
	It would not be sensible to allow people who have been negatively affected only in a very minor way to make such representations or applications to the court. For example, an order which required an individual to disclose financial information might have the side effect of stopping him from gambling with the money he had made through exploiting others. That would have a negative effect on his local bookmaker. However, I think we can all agree that that is an insignificant sort of negative effect, and it should not mean that the bookmaker could make representations or applications to the court.
	In addition, there will be provision in the application process for the making of an order set out in the Civil Procedure Rules—something to which the noble Lord, Lord Henley, alluded—requiring the applicant authority to bring the potential impact of the proposed terms of an order on third parties to the court's attention.
	Together, these measures will ensure that the courts have the right information in front of them to enable the right decision to be made on what terms of an order would be reasonable and proportionate and on whether variation or discharge was appropriate.
	We believe that, as a whole, the Bill successfully balances the need to make the orders effective with the requirement to ensure that the rights of third parties are protected. On that basis, we resist the amendments.

Lord Crickhowell: As always, the noble Baroness sounds extremely reasonable and very convincing. However, I am not a lawyer and therefore I find these things rather more complicated than she does. Listening to the first part, at least, of her speech, I turned to Clause 5 and kept asking myself howany of the examples of prohibitions, restrictions or requirements that may be imposed on individuals listed in Clause 5(3) could have anything but a pretty serious impact on people. Then the noble Baroness did what she has done on a number of previous occasions: she produced an example—that of the bookmaker. She argued that that was a case in which someone would not be significantly harmed.
	As a non-lawyer, I am very worried about legislation that depends on the giving of examples by the noble Baroness—some openly and others rather more discreetly in correspondence because they may give clues to real criminals about how to get round the Bill. I am worried about legislation that depends on the giving of examples to produce clarity where clarity does not exist in the wording of the legislation. Reading Clause 5(3), it seems to me that almost all those requirements will have a significant impact. It is hard to see how they cannot have a significant impact. Therefore, I still feel very unhappy that the word "significant" should be removed, that somehow the whole thing should be left to trust and that from the point of view of the ordinary individual everything will be all right. The noble Baroness is a reasonable person and she assures us that it will be all right. I am confident that, if the noble Baroness is the person responsible for interpreting the thing on the day, it will be all right because she is an entirely reasonable person, but I am less convinced that that will always be the case in the real world. Therefore, I say to my noble friend that I hope that, whatever he decides to do tonight, he will think carefully about this issue before we return to it at a later stage of the Bill.

Baroness Scotland of Asthal: I disagree with the noble Lord. His point is that if all those things are significant, then the person who can show that they are adversely affected in a significant way would be able to make an application.
	I shall explain the process. I am sure that the noble Lord, Lord Thomas of Gresford, never intends to mislead the Committee; that is the furthest thing from his mind. However, one must think about the process. Before the High Court can reject an application to join as a third party, it will have to hear it. An individual will make an application in which they will say, "I believe that I have been significantly adversely affected by the making of this order in the following terms; namely". They will have to set out, in accordance with the three tests I referred to earlier, how they sit within it.
	The court will then have an opportunity to read and hear about what the applicant says entitles them to become a third party in the proceedings because they have been adversely affected. It will then be for the court to determine—bearing in mind the nature of the conditions, the content of the order made against that individual and the nature of the concerns referred to in their application—whether or notthey meet the threshold of the court thinking it appropriate for them to be joined as third parties, so that the court can determine whether, in the interests of justice and all the parties concerned, it is appropriate to vary, or otherwise dispose of, the orders or conditions attached. It is not, as the noble Lord, Lord Thomas of Gresford, says, that people cannot make an application. They get an opportunity to do so and to have their say. The court will then get a chance to determine whether the application falls within the category of "significant" issues.
	It is important for us to bear in mind that whether a person has been negatively affected in a way which the court considers "significant" will quite often be a question of fact, capable of determination, and on which the court can make a judgment. It is therefore likely that these applications can be dealt with appropriately. However, it must be important for the court to determine when someone is affected in a minor, insignificant way, insufficient to entitle them to become a third party. The court should properly be entitled to exclude them from being third parties in those circumstances.
	The conditions to be attached to the order will address the mischief identified by the authorities. That is why it is important that, in the civil rules, the authority will have to satisfy the court as to the nature of the order, which third parties may be adversely affected and what steps have been taken to notify or otherwise bring them to the court's attention. Because of the way in which the investigation was carried out, there may be people who were lawfully carrying out a business which might indirectly be affected by a condition that has been made, but who were not brought to the court's attention at the time the order was made. It must be right for such a person, when they become adversely affected—that is often how they will find out if they are not told; something will happen to how they do their business and they will realise that they are—to be entitled to go to the court and to say, "I wasn't given notice about this. It impinges on me in a significant way. These are the facts I complain of. I wish to be joined as a third party and considered in relation to modification or change of an order, made without my knowledge, by which I have been affected". We think that process is fair and just, but it must be open to the court to say that in those circumstances it does not deem him to be significantly adversely affected because the effect is minor, that he should not be a party and that it will not entertain him.
	In civil proceedings, the High Court is used to third party applicants making an application to join an action because they have a legitimate interest in it.On a daily basis, the High Court has to cometo a judgment about whether those parties should properly be joined in the proceedings. Notwithstanding the fact that the noble Lord spent perhaps the majority of his career in the criminal court, I am sure that he must have trespassed into the civil court on occasion. If he did, I am sure that he will be able to confirm the assertions I have made.

Lord Henley: In moving AmendmentNo. 74, I shall speak also to Amendment No. 75. We are concerned by the proposition that a person can have an SCPO imposed on them in their absence. Clause 10 makes provision for ensuring that the subject of an order knows that there will be a court hearing. But it makes clear that an order will not necessarily be made in the presence of the subject of the order.
	For an SCPO to be made, one of the following tests has to be satisfied: that the person has been represented in the proceedings, either by himself or by somebody else; that a notice of the hearing has been served on him personally; or that a notice of the hearing has been sent by recorded delivery post to his last known address.
	It is therefore perfectly possible to have a situation where someone is made subject to such an order with no knowledge of the hearing—for example, if they had moved, were away or if the notice had gone astray in the post.
	I fully accept that if a person deliberately absents themselves from a hearing, the court should be empowered to proceed. But why is it right to provide specifically for proceedings to continue in the respondent's absence where that absence is not intentional? It seems at variance with the stancetaken in Clause 9 where the court must give third parties the right to make representations in specified circumstances. Presumably that means that if they do not turn up at a hearing, the court would have to delay its decision until the third party was able to attend and make his or her representation.
	I would be very grateful if the Minister could consider further the implications of Clause 10 and make provision for the order to be made in the person's presence unless he has deliberately absented himself. I beg to move.

Baroness Scotland of Asthal: I understand why the noble Lord has tabled these amendments, but we do not think that they are necessary. Clause 10 already provides the certainty we need because the Bill is very clear that a person subject to an order is to be bound by it. Clause 10—as I think the noble Lord, Lord Henley, has identified—provides that the subject of an order is only bound by it in one of two circumstances. The first circumstance is when he is represented at the hearing where the order is made or varied—and that can be in person, through a person's solicitor or some other form of representation; the second is where a notice setting out the terms or the variance of the order has been served on the person. That can be either by delivery in person or recorded delivery to the person's last address. Noble Lords will know that this is a familiar form and consistent with the High Court procedure rules. It is important, therefore, to look at this clause alongside Clause 25(1), which states that breach of the terms of an order is only a criminal offence where there is no reasonable excuse for the breach.
	If the subject did not know the terms of the order, he is likely to have had a reasonable excuse. To require the applicant authority to show that the subject of the order has deliberately absented himself from the procedure, as proposed by Amendment No. 74, is unnecessary. Therefore we cannot accept it. What is important is whether the subject knew of the terms of the order. If he did not, the defence in Clause 25(1) will apply.
	We believe that Amendment No. 75 is also unnecessary, for the same reason. It will be important to allow law enforcement to effect service in some other way than in person. Unsurprisingly, such people will often try to avoid law enforcement. Again, if the person can show that he did not know the terms of the order through a failure in the service, the defence in Clause 25(1) will apply.
	For those reasons, we believe that the provisions in the amendments are unnecessary, but I hope that I have been able to clarify why we believe that that is so. Any application to the High Court would be bound by the Supreme Court rules that apply to each and every application made before the High Court.

Lord Burnett: As a prelude, I shall refer to the discussion that we had on the evening before our first sitting in Committee, on 6 March. I put on record in our debate on 7 March how grateful I was to the Minister for organising that briefing. I wondered whether between Committee and Report she would consider reconvening the meeting to discuss one or two issues of tension with the individuals who came with her last time. She seems to be nodding and I am grateful to her.
	The amendment has been suggested to us by Liberty. It would require the relevant prosecuting authority to apply to the High Court for the variation or termination of the order if a change of circumstances,
	"means that the order in its current form is no longer necessary to protect the public by preventing, restricting or disrupting involvement ... in serious crime."
	The Government have placed great emphasis on the fact that serious crime prevention orders would be made by the High Court rather than, as in the case of anti-social behaviour orders, lower courts or, in the case of control orders, the Home Secretary. It is argued that that would protect against inappropriate use of SCPOs. However, there are several major problems with that argument. As we have discussed, regardless of the quality of its judges, the court can only work within the boundaries set in laws passed by Parliament. It cannot transform unfair and unjust laws that may not be compliant. This amendment deals with a more practical, although important, weakness of the system which the involvement of the High Court would not remedy. The High Courtcan consider only the necessity of an SCPO and the proportionality of the obligations and restrictions it imposes when a case is brought before it, for example when the application for the order is initially made or when a person applies to vary or discharge the order. The High Court could not reasonably be expected to monitor the SCPO for the duration of its existence in order to ensure that the conditions it imposes remain justified and proportionate. This would mean that if a change of circumstances made the order unnecessary or rendered its terms unjustified or disproportionate, the order would nevertheless remain in force with the same restrictions or obligations. As the maximum duration of an order is five years, such changes of circumstance are likely.
	In the context of control orders, the noble Lord, Lord Carlile, has stressed the need for regular review to ensure that the order imposed remains proportionate. His first report was as independent reviewer, pursuant to Section 14(3) of the Prevention of Terrorism Act. At paragraph 45 of the review, which was published on 2 February 2006, he stated:
	"The key to the obligations is proportionality. In each case they must be proportional to the risk to national security presented by the controlee. The minimum obligations consistent with public safety are the only acceptable basis for control orders ... Last year I recommended the establishment of a Home Office led procedure whereby officials and representatives of the control authorities meet regularly to monitor each case, with a view to advising on a continuing basis as to the necessity of the obligations imposed on each controlee".
	In the Bill, as in the context of control orders, there is a restrictive power for the person subject to an order to apply for the order to be discharged or varied. This is, we contend, insufficient. Where the state imposes restrictions on a person's rights and freedoms, the state should ensure that these are justified and proportionate. It should not be left to the individual in question to demonstrate that the restrictions are no longer justified or proportionate. The amendment would require the prosecuting authority to apply to the court for the variation or discharge of an order where there has been a change of circumstances.
	A practical problem with relying on the person subject to an order to apply for its variation or discharge is that he or she will not always know when there is a change of circumstance. The prosecuting body may have access to intelligence or evidence showing a change of circumstance, but this may well not have been disclosed. Let us assume, for example, that a bank was subject to an SCPO because it was believed to be facilitating the financing of terrorist groups overseas. That group may have been broken up by an overseas law enforcement agency without the knowledge of the bank, meaning that the SCPO is no longer necessary. In such a case, the individual should not be expected to apply for the order to be discharged. I beg to move.

Baroness Scotland of Asthal: Let me say straightaway to the noble Lord, Lord Burnett, that I agree with the spirit of the amendment, which would ensure a means of amending or discharging an order, but the amendment is not necessary because we have already made provision for this in Clauses 17 and 18. We believe that those clauses ensure that we avoid a situation where an order becomes unreasonable by virtue of no longer being relevant. Perhaps I may say with respect that the noble Lord's amendment would make the scheme in relation to these orders impractical, because it would place an obligation on the applicant authorities to apply for a variation or discharge of an order where there has been a change of circumstance which makes the order or particular terms of it no longer necessary, but that change of circumstance may be in the peculiar knowledge of the individual who is adversely affected or constrained by the order. It would mean that when the applicant authority did not make such an application because it was not aware of the change of circumstance, it would be in breach of a statutory obligation. Clauses 17 and 18 emphasise the need for the authorities to come back in relation to these matters where appropriate.
	The party to the order-making process who is best placed to determine whether there has been a change of circumstance relative to the order may well be the third party themselves. Where such a change has occurred, the Bill provides a means for them to apply to the High Court, as the noble Lord has directed. Under Clauses 17 and 18 it is open to the relevant applicant authority to make an application for variation or discharge at any time, regardless of whether there has been a change of circumstance. Further, the relevant applicant authority will keep the orders under review and make applications when appropriate. That, I think, is really what the noble Lord wants to ensure. What we have provided for here is to ensure that the person who knows of the change is in a position to apply for a variation or discharge. If that person happens to be the individual affected by the order and there is a change of circumstance, they can make the application. If the relevant applicant authority comes to the view that either there is a change in circumstance or some other reason why the order is no longer appropriate—it may not have been a change in circumstance for the individual but, asthe noble Lord has alluded, some other relevant circumstance may make it appropriate—it can apply to have the order discharged. Further, as I have said, we will keep this under review.

Lord Burnett: I entirely endorse what the nobleand learned Lord has said, and with his wealth of experience on these matters I am grateful to him for his contribution. Our amendment is a duty on the prosecuting authority to monitor these orders. Furthermore, if there is a change of circumstances, that prosecuting authority should apply to the court for a variation or discharge. I wonder if the Minister would like to advert to the points made by the noble and learned Lord.

Baroness Scotland of Asthal: It probably comes down to the procedure that would need to be adopted. Before the court heard or listed the application, the applicant would have to make, in essence, an application wherein they would set out the grounds upon which they asserted there had been a change of circumstance that justified the court hearing an application for variation. If on the face of the document produced by the applicant there had been no material change in circumstance to justify such an application, the court would not entertain one because there had been no change of circumstances. That is the way it would have to work. It gives the court control of whether it thinks an application is merited.
	It is a bit like an application for leave. To make an application for leave you set out the basis upon which you assert that leave should be granted for an application to be made; the court looks at your application and makes an order. So far as I am aware, we have not yet produced any of the rules in relation to making applications because that would be presumptuous until the Bill comes through, but I respectfully suggest that the noble and learned Lord thinks about how the Supreme Court rules work at the moment; I anticipate that the procedure we will adopt will be very similar to that. It would have to be transparent and fair, and to have enough information to enable the court to come to an informed judgment; if not, I imagine, it would be capable of challenging the process. We have not got the rules yet, but that is how we anticipate it will work.

Baroness Scotland of Asthal: I know that the noble Lord, Lord Crickhowell, enjoined me not to use examples, and I am about to do so only to explain why we think the current drafting is appropriate.
	We have included the power for the court to order forfeiture because without it, we think we might get some pretty perverse results. Let me give theexample of multiple telephones being used in drug transportation or trafficking cases. One of the provisions that the court makes is that the individual involved should have possession of only one mobile to prevent the widespread use of clean and dirty mobiles for personal and criminal business respectively. After the person's arrest for breach of the order of having more than one mobile and the subsequent disposal of the offence, the police would have to return the other mobiles which the subject had been using to breach the order, as the breach would be having in his possession other mobiles. Not only would the vast majority of people think that this was a rather unusual outcome, it would also mean that the subject of the order was immediately in breach of it again because the police were not able to remove from him the mobiles or the article that caused the breach.
	Amendment No. 82 would change the test in Clause 26(1) from a subjective test which the court considers to an objective test where the court has "reasonable grounds for believing". We believe that the current drafting of the test is more appropriate. The matter is decided by a judge who can be expected to make a reasonable decision based on the evidence and the arguments, without the need to set this out expressly. For that reason, we think that, practically speaking, the clause works as it should. We do not think that this will cause a difficulty for the court. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Henley: Perhaps I may correct the Minister on one matter—at least I hope I can do so—because my noble friend Lord Crickhowell has gone. She claimed that my noble friend Lord Crickhowell objected to the use of examples. What my noble friend was objecting to was much the same as that to which my noble friend Lady Anelay was objecting earlier; namely, the use of examples in the Bill.Clause 5 lists all the types of provision that may be made by order. That is an odd procedure to use in Bills. We have no objection whatever to examples being used by way of explanation by the Minister, because she is very good at that, and an example can often help explain exactly what she is getting at. On this occasion, she has done it rather well, becauseshe has persuaded me that the wording that the Government are proposing in Clause 26 is better than our wording. On this occasion, therefore, I shall withdraw my amendment, but I hope she will bear in mind what I said to her about what she said about my noble friend and the use of examples. I beg leave to withdraw the amendment.

Baroness Noakes: I shall speak also to Amendment No. 85. This is the first time that I have taken part in our proceedings on the Bill. I was unfortunately unable to attend Second Reading, but I have studied the Hansard record of that debate and of the first day of Committee, and I hope that my presence this evening will not be taken amiss.
	These amendments and those in the next two groups explore the way in which the Government wish to use the winding-up provisions which apply to companies generally for the purposes of combating serious crime. I should say at the outset that we have no problems in principle with using the winding-up provisions in appropriate cases where serious crime is involved; rather, we wish to explore some of the details.
	I should express my appreciation to the Association of Business Recovery Professionals, which is more colloquially known as R3, for its helpful advice on these provisions. Amendment No. 83 is a probing amendment. It would delete subsection (6) ofClause 27, which applies to companies registered in England and Wales. Amendment No. 85 would do the same to Clause 28, which applies to companies registered in Northern Ireland.
	The greater part of Clauses 27 and 28 concerns companies, but subsection (6) of each clause gives the Secretary of State power to apply the Insolvency Act 1986 or, in the case of Northern Ireland, the Insolvency (Northern Ireland) Order 1989, to relevant bodies. "Relevant body" is defined in subsection (11). I shall come to that in the next group of amendments.
	These amendments probe the inclusion in subsection (6) of the words,
	"with such modifications as he considers appropriate".
	I turned to the Explanatory Notes to find out more about what was intended, but, as is so often the case with Explanatory Notes, they fail to explain what one wants to know about a Bill. The amendments askthe Minister to set out what modifications the Government believe could be made using subsection (6) and why they are necessary.
	The Minister will know that the power of modification, as drafted, is very wide and seems to apply to the whole of the Insolvency Act 1986. Could this power be used, for example, to modify the way in which preferential debts are determined and paid out under the 1986 Act? Will the Minister say whether and to what extent this power is constrained and how any such constraints are enforced?
	As I have said, we have tabled Amendments Nos. 83 and 85 on a probing basis. We shall want to consider the Minister's response very carefully, especially in the light of the fact that the order-making power in subsection (6) is subject only to the negative resolution procedure as set out in Clause 78(6). If the powers are modest, that procedure is appropriate, but if, as seems possible, the powers are extensive, we may want to revisit at a later stage whether the negative resolution procedure is appropriate for a wide power. I beg to move.

Baroness Noakes: I am very grateful to the Minister for her response, which I could have anticipated. I was trying to probe how far the power could be used. She said that the power would enable the Act to apply to different kinds of bodies, which I understand, but I was proposing that the power was extremely wide and could be used to change some core elements of the 1986 Act—and, if that were the case, the negative procedure would not be appropriate. Will the Minister clarify whether there are any constraintson how this power could be used? It is the circumscription of the power that I seek to explore—not the existence of the power itself, which the Minister has properly identified.

Baroness Noakes: Amendment No. 84 is another probing amendment. I shall speak also to the other three amendments in the group.
	As the Minister explained, Clause 27(11) defines the term "relevant body", which is used in subsection (6), and relevant bodies can be subject to winding-up orders under Clause 27. As she also explained, although they are defined largely unremarkably in paragraphs (a) to (c), paragraph (d) gives the Secretary of State the power to add,
	"such other description of person as may be specified by order".
	That is in itself a wide power. The Explanatory Notes, again, offer no help on how such a power could be used.
	Amendment No. 84 adds a requirement for such an order to be made using the affirmative procedure,and Amendment No. 131 removes the power fromthe list of negative procedure powers in Clause 76(6). Amendments Nos. 86 and 132 are the mirror amendments for the Northern Ireland provisions.
	We are not entirely sure why paragraph (d) is needed at all. Are the Government not able now to define the bodies that they wish to be included in this clause? I assume that the Government have satisfied themselves that all kinds of body currently in existence are within the clause. I assume that the Government are happy that the most recent innovations in the corporate sphere are included; for example, limited liability partnerships under the Limited Liability Partnerships Act 2000 or community interest companies under the Companies (Audit, Investigations and Community Enterprise) Act 2004. I assume that those are included in Clause 27 and will not need to be brought within it using the paragraph (d) procedure. The Minister may also wish to comment on whether and to what extent overseas companies are within Clause 27 without the paragraph (d) power. The question is whether the Government are sure that their current formulation of Clause 27 includes all types of body that should be within the scope of Clause 27. Presumably it should be open to the Government when inventing new forms of body to ensure, if it was deemed appropriate, that the relevant legislation incorporates provisions corresponding to those in Clause 27.
	Perhaps I may approach this from a slightly different direction. Clause 27 is fundamentally about corporate or business structures that could be wound up. The Insolvency Act was designed around such bodies. But the power in paragraph (d) applies to,
	"such other description of person",
	and hence is not limited to corporate or business bodies. As the power to amend in relation to relevant bodies is in principle quite wide, that raises wide issues.
	I am asking the Minister where the boundaries are. Would it be possible that categories of individual, who are persons, could be brought in under paragraph (d) orders? Could the power be used to bring in charities that are not set up as companies or other kinds of unincorporated body? Are there any limits—rather as I was discussing on the previous amendment—to how this power could be used? As the Minister will see, we have concerns about this power being used to add relevant bodies under paragraph (d) with only the weakest of parliamentary procedures to oversee the use of that power. Our amendments in this group therefore focus on making the power subject to the affirmative procedure rather than the negative one.
	The Minister will be aware from my remarks that we are also concerned about the appropriateness of the power in paragraph (d). It is important that the Minister should comment on the extent of the power as well as on the parliamentary process. I beg to move.

Baroness Noakes: I thank the Minister for that reply. She stressed that the reason for using the negative procedure was that the power was limited in its application. I was trying to probe the natureof these limitations. That is why I asked various questions about what sorts of person the power might apply to. I did not detect any limitations in the Minister's response, so I am left with the impression that this is a very wide power which perhaps ought to be subject to the affirmative process. I do not know how the Delegated Powers and Regulatory Reform Committee reached the conclusion that the power was limited; I cannot see how it is limited. Perhaps the Minister can help me on that.

Baroness Noakes: I decided to use a stand part debate to explore some of the Government's thinking on Clause 27. I have not tabled anything about opposing the Question whether Clause 28 should stand part, but I am sure that the Minister will appreciate that my comments apply with equal force to the Northern Irish equivalent. As we have discussed, Section 124A of the Insolvency Act already allows the Secretary of State to present a petition allowing for the winding up of a company in a number of circumstances, including investigation under the Companies Act 1985 or the Financial Services and Markets Act 2000, or following information obtained under Section 2 of the Criminal Justice Act 1987. The basis for winding up under Section 124A is that it is,
	"expedient in the public interest",
	that the company be wound up and that the court has to consider that it is just and equitable.
	The Minister read out the equivalent parts of Clause 27 earlier. The one difference is the word "expedient", which is in Section 124A of the 1986 Act. Will the Minister say why that word, which presumably had some significance when it was drafted for the purpose of the 1986 Act, has been omitted from the equivalent provision in Clause 27?
	The one significant difference between Section 124A and Clause 27 is that Clause 27 has a very specific requirement that the body has to have been convicted of an offence under Clause 25 on failing to comply with a serious crime prevention order. Section 124A is much more broadly based, because it does not require any kind of conviction. It does not even require insolvency. The Section 124A provisions have been used significantly. I understand that between30 and 70 petitions are presented each year, and I have not been made aware of any problems in using that power. I invite the Minister first to say in what respects the existing power under Section 124A was felt to be insufficient for the purposes of catching companies that have been convicted of an offence under Clause 25? Is Section 124A not wide enough to allow petitions in those circumstances?
	I am aware that Clause 27 allows various persons other than the Secretary of State to present a petition, but that is not the focus of my inquiry. I am seeking an explanation about the powers to obtain a winding-up order under Clause 27 in comparison with those under Section 124A, rather than about the persons who may use the power. My first concern is why we have Clause 27 instead of Section 124A? Let us assume that the Minister will convince me, as I am sure she will, that Clause 27 is necessary. Will she explain why the Government have chosen to include substantive provisions relating to the winding up of companies in the body of criminal law rather than that of insolvency law?
	Concern has been expressed by R3, the association that I referred to earlier, about the fragmentation of insolvency law between different statutes. It believes that fragmentation carries a risk of anomalies and inconsistencies for the treatment of different companies in substantially similar circumstances.
	Which Minister or Secretary of State will be responsible for bringing forward secondary legislation under Clause 27? Will it be the Secretary of State for Trade and Industry, who has primary responsibility for insolvency law, or the Home Secretary? Does the Insolvency Service, which acts as a repository of technical expertise in the highly complex law relating to company insolvencies and winding up, agree with the drafting of Clause 27?
	I suggest that a more satisfactory way of achieving the policy objective behind Clause 27, which we do not have a problem with, would be to amend Clause 124A of the Insolvency Act 1986 so that all relevant insolvency provisions were kept together as an integrated and coherent whole. That is the preference of R3, as I mentioned earlier. The fear is that the Bill creates a tiny island of insolvency law and a great ocean of criminal law, which could in due coursehave unintended consequences for the coherenceof insolvency law overall. I look forward to the Minister's response.

Baroness Scotland of Asthal: First, on the question raised by the noble Lord, Lord Burnett, I do not think that anything is not covered by the Bill at the moment; but, as I said to the noble Baroness, Lady Noakes, as things have evolved, we have created new bodies that should properly be included in any such list. The list is up-to-date as of today, but whether we will have created anything else by a year or two hence, I could not possibly comment.
	I say to the noble Baroness that on at least two occasions she suggested putting these orders into the criminal law. The whole purpose of the Government making these orders is, actually, to make civil orders. The prevention orders will not be made in relation to crime; they are protective orders. That is why we have borrowed from the Insolvency Act. One of the things that we are trying to do in relation to the authorities that are charged with interdiction of high-volume, serious crime is to be able to take action in a comprehensive and inclusive way in relation to these criminals. I know that the noble Baroness is familiar with the threat that they pose to legitimate business, particularly because they have previously created companies for the sole purpose of having a sham through which their nefarious practices can be covered.
	The noble Baroness is correct with regard to the way in which we have used the current provisions of insolvency to deal with those circumstances. It is not because the circumstances have not been found to be well proven; it is because they are well proven that, when looking at these provisions in terms of what the High Court can do in considering an application, we see this as being one thing that the court may be minded to do and will be entitled to do within these proceedings.
	The clause provides the applicant authorities with the power to petition the court for the winding up of a company, partnership or relevant body. This is so that, where such a body is being used for serious criminal purposes, it is possible to stop such activity through the authority where appropriate. At the time of making an application to the High Court, such an authority might make a number of orders in relation to stopping the activity. It might be winding up the company, making an application to restrict the movement of the individual or seeking to make appropriate further or other conditions on their ability to act. Clause 27(2) to (4) provide for the winding up of a company for that purpose.
	Subsection (5) allows the Secretary of State to make an order to allow the court to wind up a partnership. Subsection (6) allows the Secretary of State to make an order to allow the court to wind up a relevant body. The court will not be able to wind up a partnership or a relevant body unless the secondary legislation under those subsections has been made.
	The noble Baroness was right to highlight the provisions of Section 124A of the Insolvency Act 1986, because that is an example of winding up a company where it is in the public interest to do so. We have tapped into that legislation and used that framework so that the court can make an order within it. It is not the case that Section 124A is insufficient—that is not the point; rather, we simply wanted to provide for the court to be able to tap into that legislation when dealing with serious organised crimes and applications in this way. We wanted to provide for an applicant authority under the Bill to petition the court for winding up rather than having to go back through the route provided for an application in the Insolvency Act; otherwise, a number of applications would be going through the court at different times. This is a way of consolidating matters and enabling one application to be made in relation to one body.
	We have acted in that way in order to prevent fragmentation, and we have avoided creating any new procedures. If the noble Baroness goes through all the safeguards that we have in relation to Her Majesty's Customs and Excise and so on, she will see the way in which we have transported provisions from past legislation into these provisions. We have sought to remove any duplication so that there is consistency, a framework and a synergy, and we are not doing anything outwith what was argued about and debated when those other provisions were passed. We are not adding anything.
	I have looked at whether we can find a reason why the word "expedient" has been left out on this occasion. It simply seems to me that the issues have been differently framed. It does not seem to have great significance other than being a drafting difference. The key is that the court must consider that winding up would be, first, just and, secondly, equitable, and those two safeguards will ensure that winding up occurs only when appropriate. I shall look at that issue and try to get a better explanation for why it is not there. I certainly did not have specific briefing on it and it does not seem to have a real significance. I shall need to have an explanation for the Committee as to why it is not there.
	The noble Baroness asked me which Secretary of State will be responsible. As insolvency is an issue for the Secretary of State for Trade and Industry, it will be for that Secretary of State to make the orders, so nothing will change. We are considering the possibility of the Treasury making orders in relation to mutuals, such as building societies, for which it is responsible. That will enable us to be consistent with the framework that we currently have. We are not seeking to make any material change in that structure.
	I hope I have been able to say enough to assure the noble Baroness that the framework, which is clearly dear to her and which works well, will not be interfered with. It will stay as it is and will simply allow applicants, when they look at what they need to prevent criminals from taking advantage of the proceeds of their crime and to stop them from furthering crime, to be able to make all the relevant orders at the same time as may seem to the court to be convenient. That is another reason why we thought that these orders should properly be made in the High Court as, in any event, the High Court is the court that will normally be seized with all these applications and will have the expertise and knowledge to deal with them.

Baroness Anelay of St Johns: I shall also speak to Amendments Nos. 90 to 92 as we reach the end of Part 1. The amendments make the applicant authorities take more effective control over decisions to go to court to obtain serious crime prevention orders.
	The Explanatory Notes state that there will be tight control over the process of applying for an order to be made. We question whether the procedure set out in Schedule 2 is sufficiently rigorous. We are using these amendments to ask the Minister to put on the record the process by which SOCA will propose that an application be made, which then goes through a period of scrutiny followed by application to a court.
	The schedule clarifies which authorities may make an application for an order: the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the director of the Serious Fraud Office and the Director of Public Prosecutions for Northern Ireland. Paragraph 109 of the Explanatory Notes states that:
	"A Director must expressly delegate his functions rather than it occurring automatically. This will ensure that the exercise of the powers is kept under tight control by the Directors".
	But the drafting apparently does not give quite the crystal clear explanation that paragraph 109 seems to offer as an assurance. Schedule 2(2)(1) says:
	"The Director may, to such extent as he may decide, delegate the exercise of his functions under this Part to a Crown Prosecutor".
	In theory, that could mean that the DPP couldsimply give a general ruling on day one of the implementation of this Bill that, henceforth, all Crown prosecutors may make the decision to apply for an order. That would mean that no special overview was required or guaranteed by the DPP. I hope that the Minister does not foresee that situation, but we need clarity on this.
	I appreciate that a back-up provision intendedto give some reassurance is found in paragraph 3, whereby the Attorney-General will superintend the functions exercised by all the directors. Is it intended that the Attorney-General will review each and every application personally, or will he delegate his powers? If he delegates his powers, will his office automatically scrutinise each and every application coming forward from the various directors?
	The Government's public estimate so far has been that approximately 30 orders a year are likely to be made; that has been culled from various press releases. Is that still their view, and on what have they based that assumption? I beg to move.

Baroness Scotland of Asthal: I shall deal with the noble Baroness's last question first. The figure that she gave is our current estimate. We have had to ask for advice from the relevant authorities on their reasonable expectation as a result of going through cases and histories to see what is likely. That is their best estimate. The noble Baroness will see from that figure that these orders will not be lightly sought, because they are likely to be limited in number and directed to those cases where the seriousness of the activity is such that the authorities believe it necessary to take this action.
	It is unusual for such a direct delegation of powers to be made to the Director of Public Prosecutions, the Director of Public Prosecutions for Northern Ireland the Director of Revenue and Customs Prosecutions or the director of the Serious Fraud Office. It is expressed in this way on this occasion because how decisions are made must be more tightly controlled than it would otherwise have been, because these are very serious orders. So the need to express delegation is a departure from the norm. Normally—for example, under the Prosecution of Offences Act 1985—delegation happens automatically by operation of the legislation. The reason we have departed from that and provided express delegation is because we believe that these orders fall into a slightly different category. They will need to be carefully targeted and scrutinised to make sure that the evidence and information on which they are based is sound and in good order to go before the court.
	The Attorney-General will provide his usual oversight of the director's functions. He will not look at every case. He is usually invited to look at particular cases that are causing difficulty or on which his support and advice are needed. That procedure will continue to operate. It will not be just the Serious Organised Crime Agency that will apply for these orders. Law enforcement agencies will bring casesto one of the applicant authorities and will workwith specifically trained members of the applicant authority—not all members of those bodies will be so trained—who have had powers delegated to them by the director of the body. If those specifically trained members of the applicant authority consider it appropriate, they will apply to the court for an order to be made. It is because these orders are specialist that we think it appropriate to create this procedure.
	It is important to recognise that we cannot expect each director to make every operational decision in relation to every order sought by his organisation. That would be impractical. However, these orders will be applied by highly trained and highly qualified members of the three organisations. We believe that that will be a wholly acceptable way to work. The most important thing is that any application should be properly made so that it can succeed. We have created a high benchmark in the tests that have to be satisfied. It would be a great disappointment if the skill and attention needed to make sure these orders go well were not applied, hence this procedure. I hope the noble Baroness will feel content, particularly as it is now 10.02 pm.